“People’s relatives aren’t allowed to be paid out of a direct payment”

This is not a myth – not a complete one, anyway.

But if that is what one is told by a council’s member of staff, one needs to think quite hard and check out the regulations.

If one looks at the Care Act Direct Payment regulations, one finds that there is a particular condition that is applicable to all direct payments – that is, one that the council must apply: it is that the payment not be used to pay anyone for care and support from specified categories of people, listed in the regulations.

It is thought that the rules are most likely based on the public policy that there’s no need to pay relatives for that which they would willingly do for free, out of ordinary love and affection.

The point here though is that no relative’s willing and capable informal care can be assumed 24 hours a day; people have to take difficult economic decisions in this day and age, and a carer’s interest in working is a statutory part of any carer’s assessment.

Who is presumed forbidden?

Spouses and cohabitees, for instance, are not able to be paid to do the care. The rules do not distinguish between that relationship and a separated spousal relationship, and the rule applies regardless of where one’s spouse or cohabitee lives.

Parents living in the same household aren’t allowed to be paid for care, either.

Stepsons and daughters are prohibited, but not the step parents of anyone, where the step parent has taken over from the natural parent, now deceased.

We think that that reflects the position that one is not in fact a step parent, once the step child is over 18.

If one is married to or living with the parent of an adult on a direct payment however, one is prohibited then as a step-parent.

If one is living in the same household as a friend, there’s no rule against that being a commercial arrangement out of the direct payment, in the council based system, although it is different for a personal health budget, oddly enough.

If you are a relative on the list but NOT living in the same household, there is no rule against that sort of a paid arrangement, either.

In all cases where the prohibition applies, however, a discretion may be exercised to permit it, if it is necessary. The council is the judge of that, subject to judicial review, eg for taking an extreme view of what necessary should mean.

Public law principles require a council refusing permission to a person to spend the DP on a prohibited person, to state its reasons, and to make sure that they are rational reasons, after taking all relevant considerations into account.

It owes human rights in relation to that thinking, too, and must promote the well-being of the client.

Health budget rules are a little different

When the regulations on direct payments in the NHS (for CHC and some other services) were issued in 2013, there were, at first, NO rules about close relatives doing the work at all, and being paid out of the budget, but this was by mistake.

The regulations were then amended in the same year to say that a health body may only permit an individual living in the same household as the patient, a family member or friend being paid out of the budget, if this was necessary. However, this was interpreted by some clinical commissioning groups as placing a restriction on paying family members or friends who were not living in the same household as the patient, contrary to the government’s intention.

So the regulations were amended again in 2017 to ban paying a connected person to meet the needs, unless it is necessary.

However, a presumptively banned connected person is defined ONLY as one who is living in the same household, meaning that if a person is not living in the same household, it does not matter that they are close relatives, (just as with council direct payments) or even spouses (unlike direct payments from councils).